Morgan v. Jackson Cnty.

KAREN MORGAN, Petitioner, v. JACKSON COUNTY, Respondent,andLARRY PERKETT and SUSAN PERKETT, Intervenors-Respondents.

LUBA No. 2017-053

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

September 13, 2018

FINAL OPINION AND ORDER

On remand from the Court of Appeals.

Wendie L. Kellington, Lake Oswego, filed the petition for review and argued on behalf of petitioner. With her on the brief was Kellington Law Group PC.

No appearance by Jackson County.

Erik J. Glatte, Medford, filed the response brief and argued on behalf of represented intervenors-respondents. With him on the brief was Huycke O'Connor Jarvis, LLP.

BASSHAM, Board Member; RYAN, Board Chair participated in the decision.

ZAMUDIO, Board Member, did not participate in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Bassham.

NATURE OF THE DECISION

Petitioner appeals a hearings officer's decision verifying an automobile storage, repair and sales business as a nonconforming use.

BACKGROUND

This matter is on remand to LUBA from the Court of Appeals in Morgan v. Jackson County, 290 Or App 111, 414 P3d 917 (2018). We set out the facts in some detail in our prior decision, Morgan v. Jackson County, ___ Or LUBA ___ (LUBA No. 2017-053, Sept 22, 2017). We set out here additional facts and chronology relevant on remand.

In June 2016, intervenors filed an application with the county to verify an auto yard and three storage structures as a lawful nonconforming use (NCU).¹ As part of their application, intervenors provided evidence that they established an auto yard business on the subject property in 1971, prior to the date contrary zoning was first applied. On September 1, 1973, the county first applied zoning to the subject property, applying the Open Space Development 5 zone, which did not allow an auto yard use. In 1982, the property wasrezoned exclusive farm use (EFU), which likewise does not allow an auto yard use. Intervenors also submitted evidence that their auto yard business has existed in its current size and as it currently operates for at least 10 years prior to the date of its 2016 application.

County planning staff issued a tentative decision verifying intervenors' auto yard as a lawful NCU. Petitioner, an adjoining property owner, appealed. The hearings officer held a de novo hearing on December 19, 2016, holding the record open until February 13, 2017, during which petitioner argued that intervenors had failed to demonstrate that the auto yard use was a "lawful use" as of September 1, 1973, the relevant date for purposes of ORS 215.130(5), part of the statutory framework governing nonconforming uses within county jurisdiction. Specifically, petitioner argued that the auto yard use was not lawful when established, because at no time prior to 1973 had intervenors obtained a Department of Motor Vehicles (DMV) license under former ORS 481.305(1) (1971), which imposed potential criminal sanctions on operation of a business as a retail automobile dealer without the required license.

Petitioner also argued that any NCU auto yard use that had been lawfully established prior to 1973 had been affirmatively relinquished in 1987, when the county approved a home occupation use for an office in the dwelling, to be used for wholesaling used vehicles that are located off-site, so that intervenors could obtain a DMV business certificate for that wholesale use. Petitioner also argued that intervenors had failed to demonstrate the nature and extent of theauto yard use had not been altered or expanded within the relevant time periods.

In an April 2017 hearings officer's decision, the county issued a decision verifying the nature and scope of intervenors' auto yard as an NCU. As discussed further below, the hearings officer concluded that the auto yard use had been lawfully established prior to September 1, 1973, because under a reading of our previous cases, compliance with the DMV licensing requirement was "not a factor in proving a use is lawfully established." Record 20. The hearings officer also concluded that intervenors had not relinquished the NCU by obtaining the 1987 zoning clearance sheet for a home occupation, and that intervenors had sufficiently demonstrated that the nature and extent of the auto yard use had not been altered or expanded within the relevant time frame, with the exception of three structures built in the 1990s, which the hearings officer excluded from the scope of the verified NCU.

LUBA reversed the hearings officer's decision, agreeing with arguments under petitioner's first subassignment of error to the second assignment of error that based on intervenors' undisputed noncompliance with former ORS 481.305(1) (1971) intervenors had failed as a matter of law to establish that their auto yard use was lawfully established prior to the date contrary zoning was applied. Our decision accordingly did not address the remaining assignments of error.

On appeal to the Court of Appeals, the court held that evaluation whether a nonconforming use was a "lawful use" at the time it became nonconforming is limited to noncompliance with local zoning or land use regulations, and does not include noncompliance with business or occupational licensing laws such as former ORS 481.305(1) (1971), even those that designate the unlicensed use as a crime. Accordingly, the court reversed our decision on that point, and remanded the unresolved issues in the appeal for our consideration.

On June 22, 2018, we issued an order requesting supplemental briefing from the parties regarding what effect, if any, the court's ruling has on LUBA's review of the remaining issues on appeal. Both parties submitted supplemental briefing. We now address petitioner's remaining assignments and sub-assignments of error, which concern consistency with the provisions of ORS 215.130 and implementing county regulations. As background, we first discuss the relevant statutory and county regulations common to the remaining assignments of error.

FRAMEWORK OF ORS 215.130

ORS 215.130(5) provides that the lawful use of any building, structure or land at the time of the enactment or amendment of any zoning ordinance or regulation may be continued.² Generally, to verify a use as a lawfulnonconforming use, the applicant must provide evidence to demonstrate (1) that the use was a lawful use that was established prior to the date contrary zoning was applied, (2) the nature and extent of the use on the date it became nonconforming, and (3) that the use has continued in its current nature and extent uninterrupted from that date to the present day. Alterations or expansions of a lawful nonconforming use are allowed, subject to countyapproval under standards implementing ORS 215.130(9). See n 2. Alterations or expansions that occur after the date the use became nonconforming, but that have not received county review and approval, cannot be verified as part of the lawful nonconforming use unless and until reviewed and approved as expansions or alterations.

Under ORS 215.130(10), a county may adopt provisions to ease the evidentiary burdens of demonstrating the existence, continuity, nature and extent of the use back to the date the use became nonconforming, which in some cases, such as the present one, could be many decades prior to filing the application for verification. ORS 215.130(10)(a) provides that county land use regulations may allow an applicant to initially demonstrate the existence, continuity, nature and extent of the use only for a 10-year period immediately preceding the date of application.³ Such evidence "creates a rebuttablepresumption that the use, as proven, lawfully existed at the time the applicable zoning ordinance or regulation was adopted and has continued uninterrupted until the date of application[.]" Id. Once the presumption is established, the presumption stands unless rebutted by a preponderance of the evidence in the record. Lawrence v. Clackamas County, 164 Or App 462, 468, 922 P2d 933 (1999). If the 10-year presumption is rebutted, the burden shifts back to the applicant to prove the existence, continuity, nature and extent of the use back in time to the date the use became nonconforming. However, pursuant to ORS 215.130(11), the applicant cannot be required to prove the existence, continuity, or the nature and extent of the use for a period exceeding 20 years from the date of the application. See n 3. Notwithstanding the 20-year limitation in ORS 215.130(11), the applicant must nonetheless demonstrate that the use was "lawful" when it was established, even if that date exceeds 20 years from the date of application. Aguilar v. Washington County, 201 Or App 640, 645-46, 120 P3d 514 (2005).

LDO 11.8.1 implements ORS 215.130, in substantially similar terms.⁴ With that overview, we turn to the remaining assignments and subassignments of error.

FIRST AND THIRD ASSIGNMENTS OF ERROR

Intervenors submitted evidence to the county in the underling proceeding that the auto yard use had existed and continued in its present nature and extent for 10 years preceding the date of application, i.e., back to 2006, in order to establish a presumption under ORS 215.130(10)(a) that the auto yard use existed and continued in its current nature and extent since 1973, when itbecame nonconforming. That evidence included aerial photographs dating back to 2000, which showed a large fenced automobile yard approximately 1.6-acres in size with at least three structures and many parked vehicles. Petitioner submitted opposing evidence, including aerial photographs from the 1970s through the 1990s, intended to demonstrate that the auto yard use had not been established prior to 1973 or, if it had, that its nature and extent had changed dramatically since 1973. Among other things, the pre-2000 aerial photographs indicated that the three structures associated with the auto yard use did not exist on the property until the 1990s. The...